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While the legal world runs clockwise, employment law revolves counterclockwise. Not only does it not work the way you believe it should, but also it repeatedly reveals itself as counterintuitive — replete with hidden dangers to a general counsel’s office, which relies on sense and sensibility. Don’t believe us? Take a look at how easy it is to become fooled by a statute’s title, which seems so straightforward. Let’s look at the Pregnancy Discrimination Act (PDA). Its title seems clear enough: No discrimination because of pregnancy. But it’s deceiving. Recently, in a case out of the Northern District of Texas, Poucher v. Automatic Data Processing, a female employee allegedly casually mentioned to her supervisors at a company party that she and her husband were thinking of conceiving, according to the opinion. The opinion goes on to note that she was later fired; the company said the termination was for poor performance; she said it was in violation of the PDA. While she never was pregnant, the court said that intending to become pregnant, even absent conception, is a protected classification under the PDA. Apparently, our parents were wrong: You can be just a little bit pregnant. Or let’s look at the Age Discrimination in Employment Act. It all seems simple enough: Employees age 40 and older are protected. Employees age 39 and younger are not. But what about a 47-year-old employee who claims she was discriminated against in favor of a 58-year-old employee. A violation of the ADEA? The answer is “yes,” according to a recent decision by the 6th U.S. Circuit Court of Appeals in Dennis Cline v. General Dynamics Land Systems Inc. There, the company changed its health benefits, with the result that only employees 50 years or older remained eligible to receive full health benefits at retirement. Not so for employees 49 or younger. Well, employees between 40 and 49 claimed they were discriminated against in violation of the ADEA, and the 6th Circuit bought it. In an overly simplistic analysis, the court said that the fact that members within the protected class were beneficiaries of the discriminatory action of which other members of the protected class were victims doesn’t change the language of the statute, which prohibits age discrimination against any individual within the protected class. Talk about literal readings producing unintended results. The PDA and the ADEA are not the only culprits. Here’s another alphabet soup statute, the Employee Polygraph Protection Act, which seems to deal only with whether polygraphs can be given to employees. Not necessarily. A recent 7th Circuit ruling in Veazey v. Communication and Cable Company of Chicagosaid that it violates the EPPA to fire an employee for refusing to give a tape-recorded sample of his voice. While acknowledging that a tape recording itself does not fall within the definition of detection equipment prohibited under the EPPA, the 7th Circuit said that it could be used in conjunction with those devices to determine if the employee was truthful. Consequentially, the tape recording was a “lie detector” within the meaning of the law, the court ruled. It doesn’t stop with misleading titles. Courts are continually expanding the language of employment statutes, mandating coverage where none existed before. Look at a recent case out of the Eastern District of Louisiana, Briones v. Genuine Parts Co., decided in August. It concerned the Family and Medical Leave Act. The court said that a father was fired in violation of the FMLA when he stayed at home to care — not for an ill minor child — but for a healthy child. Apparently, he and his wife had four children, one of whom was ill and hospitalized. His wife stayed, ’round the clock at the hospital, with that child. Clearly, a covered FMLA event. But, because his wife was in the hospital, someone needed to be the caregiver to the other three healthy children. According to the opinion, the man insisted on staying home; his employer said the FMLA didn’t apply, and he was fired. The 5th Circuit has recently agreed to review the trial court’s ruling immediately because “the decision involves a controlling question of law as to which there is substantial ground for difference of opinion.” Yeah, no fooling. In this case, the trial court took a big marker and crossed out the word medical in Family and Medical Leave Act. Talk about your science fiction nightmares: Retaliation claims — more specifically, what the courts consider to be protected activity for which an employer cannot be retaliated against — is an ever-expanding and scary universe. Look at an 11th Circuit case, Merritt v. Dillard Paper Co. It involves an unfortunate employer being sued for a sexually hostile work environment allegedly caused by one of its salesmen. According to the opinion, when the salesman was grilled at his deposition, he allegedly either admitted to his inappropriate sexual comments or acknowledged “that sounds like something I could have said.” When the company president read the deposition, he called the salesman into his office, told him that the deposition was the most damning thing to the company’s case and fired him. The result? The 11th Circuit said the termination violated Title VII because the salesman was fired for “participating” in a Title VII proceeding. Or look at the case of a supervisor for AOL/Time Warner. One of her employees suffered from epilepsy and wanted a workplace accommodation of coming in later to work and leaving later. When the company allegedly resisted the accommodation, she allegedly insisted and was fired for her efforts, according to the 8th Circuit opinion in Foster v. AOL/ Time Warner. According to the 8th Circuit, that’s unlawful retaliation under the Americans with Disabilities Act (ADA), regardless of whether the employee is or is not disabled within the meaning of the ADA. A good-faith belief gets you there, and as a result of her termination, the 8th Circuit said she gets to keep the jury’s $250,000 verdict. Frankly, misnamed statutes or expansive readings can be the least of your worries. More and more, employment laws are being criminalized. Let’s look at Texas, where it’s a crime — that’s right a crime — if you don’t let an employee off to vote. The statute provides that a court can impose up to a $500 fine on each of the supervisors and managers who refuse the employee’s request for time off. Now, if that’s not enough of a deterrence, like all convictions, it will go on your permanent record. (By the way, here’s the drill: If the polls are open for two consecutive hours outside of the employee’s working hours, no additional time off work is required. So, if the polls are open until 7 p.m. and the employee gets off at 5 p.m., no additional time is needed. However, if the polls are open until 7 p.m. and the employee has to work until 5:30 p.m., you must allow him additional time off to vote.) Or look at the Texas statute on jury service. That law makes terminating someone for serving on a jury a Class B misdemeanor — which is punishable by a fine not to exceed $2,000, jail time not to exceed 180 days or both. Further, a court can hold you in contempt if you terminate, threaten to terminate, penalize or threaten to penalize an employee because he or she performs jury service. That’s not all. Dallas just enacted an ordinance making it a criminal misdemeanor for a private employer to discriminate against an employee or an applicant because of his or her sexual orientation. RAGING FEVER With the fever of the Sarbanes-Oxley Act still raging, there will be more prosecutions. The Economic Espionage Act of 1996 can catch you in its web, and it’s off to jail you go. Look at the chief executive officer of a company who allegedly started an e-mail friendship with an employee of a competitor. Despite his protests, she started to supply him with confidential information regarding what her company was up to, according to the opinion in U.S. v. Martin. Although he told her he only wanted to know public information, she was insistent on spilling the beans, and he passively (but apparently happily) kept the pipeline open. Ultimately, according to the opinion, they were busted; he went on trial and was convicted under the Economic Espionage Act. He protested, saying that the e-mails demonstrated the employee’s repentance for what she was doing as well as his denial of wanting confidential information. But repentance and denial do not a defense make. The 1st Circuit affirmed his conviction in 2000. Or look at the company president who owned the majority interest in his company. The company had a pension plan; some investment opportunities came up that the president felt he just couldn’t pass up — and the pension fund was a ready source of cash, according to the 9th Circuit in U.S. v. Harris. He got criminally nailed under the Employee Retirement Income Security Act, which makes it a crime to lie on any required ERISA form or to conceal anything required to be disclosed or necessary to explain the form. When he allegedly signed those reports, it showed the pension fund had almost $1 million, when in actuality they were pretty much depleted of funds, the court noted. The U.S. Attorney prosecuted him, and despite what you may have heard, a federal prison is not a “Club Fed.” We guess these cases confirm what it says in the Bible in Proverbs 28:20: “[He] who maketh haste to be rich shall not be innocent.” Speaking of religion, and how you can get bushwhacked by the counterintuitive nature of employment law, let’s go to Wisconsin and talk about an allegedly racist manager who got religion. According to Peterson v. Wilmur Communications Inc., the plaintiff worked at Wilmur Communications. He was a follower of the World Church of the Creator (sounds harmless enough), which preaches a system of belief called “creativity,” according to the opinion. The alleged teachings? People of color are “savages” with the intent to “mongrelize” the white race, according to the U.S. District Court for the Eastern District of Wisconsin’s opinion. Other alleged teachings include the belief that Jews instigated all wars in the 20th century and that the Holocaust never occurred. When the Sunday edition of The Milwaukee Journal Sentinellanded on the front steps of the CEO’s house, it contained a feature article on the church, a picture of the plaintiff (who was a reverend of the church), and a discussion of the church’s beliefs. According to the opinion, when the plaintiff was demoted because of the company’s concerns that employees couldn’t have confidence in the objectivity of his evaluation and supervision of them (especially black employees) he claimed discrimination; he won on a summary judgment. The court took the extreme position (endorsed by the EEOC) that purely morally and ethical beliefs can be religious so long as they are held with the strength of religious conviction. Because his beliefs occupied for him “a place parallel to that held by a belief in God for believers in more mainstream theistic religions,” the court said that his church was a religion entitled to protection, that the company did not offer specific first hand statements or evidence of how he treated black employees under his supervision differently, and that, therefore, the company was liable, without a trial, of religious discrimination. A couple of final thoughts. You don’t always need to let the tail wag the dog. While you need to be aware of changes in the law, you don’t necessarily need to conform your decisions to the extremes. Recall Mark Twain’s advice: “It’s not what you don’t know that hurts you, it’s what you think is so that isn’t.” So, the next time you find yourself holding on to a belief for dear life, insisting to yourself and others that you just can’t conceive it could be anything other than what you believe, or worse, that it shouldn’t be different, step back and think again. It just might be when it’s employment law. Michael P. Maslanka is chairman of the labor and employment section at Godwin Gruber in Dallas and writes theTexas Employment Law Letter, which can be accessed at HRhero.com. Burton D. Brillhart is a participating associate at the firm.

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